9.  The applicants are Irish registered companies. The second applicant publishes newspapers including the Sunday Independent and is a wholly owned subsidiary of the first applicant (formerly known as Independent Newspapers plc).
10.  The case concerns an article published in the Sunday Independent, a newspaper with the biggest circulation of any Sunday newspaper and which sold in the region of 250,000 copies at the relevant time.
11.  On 13 December 1992 an article was published in the newspaper written by a well-known journalist and entitled “Throwing good money at jobs is dishonest”. The article commented, inter alia, on a recently discovered letter (dated September 1986) to the Central Committee of the Communist Party of the Soviet Union. The letter had been signed by two persons one of whom was Mr de Rossa, a very well-known politician. The letter referred to “special activities” that had previously met shortfalls in the funding of the Worker’s Party, a political party of which Mr de Rossa had been leader. At the time of publication, Mr de Rossa was leader of another political party (the Democratic Left), he was a member of parliament and he was engaged in post-election negotiations about his party’s participation in government.
12.  The relevant portion of the article stated that:
“Irish society is divided. As the political parties manoeuvre to try to form a Government a clear picture has emerged, revealing the nature of our differences.
On one side of the argument are those who would find the idea of Democratic Left in cabinet acceptable. These people are prepared to ignore Democratic Left leader Proinsias de Rossa’s reference to the ‘special activities’ which served to fund the Workers Party in the very recent past.
The ‘special activities’ concerned were criminal. Among the crimes committed were armed robberies and forgery of currency.
The people engaged in this business occupied that twilight world where the line blurs between those who are common criminals and others of that ilk who would claim to be engaged in political activity.
This world is inhabited by myriad groups, some dealing in drugs, prostitution, protection rackets, crimes of which the weakest members of society are invariably the victims.
It is therefore, ironic, wickedly so, that a political party claiming to ‘care’ for the workers should accept funding from ‘special activities’ of a particularly nasty kind.
There is no doubt that elements of Proinsias de Rossa ‘s Workers Party were involved in ‘special activities’. What remains unproven is whether de Rossa knew about the source of his party’s funds. There is evidence, strengthened by revelations in the Irish Times this week, that de Rossa was aware of what was going on.
If one is to allow him the benefit of the doubt, and why not, one must nevertheless have some misgivings about those with whom he so recently associated.
Justice demands that we welcome Democratic Left’s recent conversion to decency and indeed, acknowledge that their Dáil deputies are exemplary in the conduct of the work they engage in on behalf of their constituents.
Still, questions remain unanswered about the Workers Party’s ‘special activities’ phase, not to mention their willingness to embrace the Soviet Communist party long after the world knew about the brutal oppression that this and other Communist regimes visited on workers, intellectuals and others who would think and speak freely.
Proinsias de Rossa’s political friends in the Soviet Union were no better than gangsters. The Communists ran labour camps. They were anti-Semitic.
Men like Andrei Sakharov and Vaclav Havel were persecuted. Citizens who attempted to flee this terror were murdered. In Berlin, the bodies left to rot in no man’s land between tyranny and liberty. Is it really necessary to remind ourselves of those ‘special activities’?”
13.  In 1993 Mr de Rossa initiated a libel action (High Court) against the first applicant. The first trial lasted eight days: the jury was discharged (following the publication of an article by the first applicant). The second trial lasted fifteen days: the jury failed to reach a verdict.
14.  The third trial lasted eleven days and ended on 31 July 1997.
15.  In his directions to the jury on damages, the trial judge stated:
“... damages are meant to compensate a person for a wrong. ... The only remedy available to a person who says he has been wronged in a newspaper is damages. Damages are meant to put a person, in so far as money can do it, in the position that he or she would have been if the wrong had not taken place. That is the enterprise you are engaged in, in relation to damages.”
16.  He then referred to Mr Justice O’Flaherty’s judgment in an unnamed case (which was, in fact, Dawson and Dawson v. Irish Brokers Association, Supreme Court judgment of 27 February 1997, unreported):
“ ... in a recent case, Mr. Justice O’Flaherty of the Supreme Court said, that the approach in cases of this kind should be no different from any other type of proceedings. The jury should be told that their first duty is to try to do essential justice between the parties. They are entitled to award damages for loss of reputation as well as for the hurt, anxiety, trouble and bother to which the Plaintiff has been put.”
17.  He went on to quote with approval Mr Justice Henchy’s judgment in another unnamed case (which was Barrett v. Independent Newspapers Ltd [1986] I.R. 13) as follows:
“It is the duty of the Judge to direct the Jury that the damages must be confined to such sum of money as would fairly and reasonably compensate the Plaintiff for his injured feelings, and for any diminution in his standing among right thinking people as a result of the words complained of. The Jury have to be told they must make their assessment entirely on the facts found by them, and among the relevant considerations proper to be taken into account are the nature of the libel, the standing of the Plaintiff, the extent of the publication, the conduct of the Defendant at all stages of the case, and any other matter which bears on the extent of the damages.”
18.  The trial judge continued:
“Now Mr. Justice Henchy, in the case he was dealing with, said that the jury in that particular case wasn’t given any real help as to how to assess compensatory damages, and he laid down a guide which could assist the Jury. He considered that in the case in question the jury could be asked to reduce the allegation complained of to actuality, and then to fit the allegation into its appropriate place in the scale of defamatory remarks to which the Plaintiff could be subjected.
Now that particular case affords you great assistance in placing the nature of the defamation in a scale, because that case Mr. Justice Henchy was referring to, revolved around an allegation by a politician that a journalist [sic.] tweaked his beard. Now it related to the time of one of the pushes against Mr. Haughey, and after an abortive push against him, everybody was coming out to a crowded area of Leinster House, bustling out, and something was written in the Evening Herald which involved an allegation [that] a politician tweaked the Evening Herald journalist’s beard. Now the learned Trial Judge found that to be defamatory and directed there be an assessment of damages.
Going back to Mr. Justice Henchy’s observation, if you examine the words and put them in a scale of things, compare the allegation with tweaking a journalist’s beard, with an allegation that Mr. de Rossa was involved in or tolerated serious crime, and that he personally supported anti-Semitism and violent Communist oppression. It would not surprise me, Members of the Jury, if you went to the opposite end of the scale and even, apart from Mr. Justice Henchy’s helpful observations, I think there can be no question in this case but that if you are awarding damages you are talking about substantial damages.
Now as Counsel told you, I am not allowed to suggest to you figures, and Counsel are not allowed suggest to you figures either. I have gone as far as I can to help in relation to that question. I don’t think anybody takes issue with the proposition if you are awarding damages they are going to be substantial. Mr. de Rossa at the time was leader of a political party. The political party was seeking to go into government. Damages will be substantial. It is all I can say to you. It is a matter for you to assess what they ought to be, if you are assessing damages.”
19.  The jury found that the impugned words implied that Mr de Rossa had been involved in or tolerated serious crime and that he had personally supported anti-semitism and violent communist oppression. The jury went on to assess damages at 300,000 Irish pounds (IR£).
20.  The first applicant appealed the award. It accepted that the jury had been directed on damages in accordance with the law but noted that the trial judge had been therefore obliged to confine his directions to a statement of general principles and to eschew any specific guidance on the appropriate level of general damages. Neither counsel nor the trial judge could suggest any figures to the jury and this practice was inconsistent with the provisions of the Constitution and of the Convention. Specific guidelines should be given to the jury in such cases including a reference to the purchasing power of any award made and to the income which the award would produce, to what the trial judge and counsel considered to be the appropriate level of damages and to awards made in personal injuries and other libel cases. The first applicant further argued that the common law and the Constitution required the appellate court to subject jury awards in defamation actions to stricter scrutiny so that the test which had been outlined by Mr Justice Henchy in the above-cited Barrett case was no longer sufficient. A court of appeal should ask itself the following question (the “Rantzen test”): “could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re-establish his reputation?”. The first applicant relied on, inter alia, Ranzen v. M.G.N. Ltd [1993] 4 All E.R. 975, and John v. M.G.N. Ltd [1996] 2 All E.R. 35) and on the judgment of this Court in the case of Tolstoy Miloslavsky v. the United Kingdom (judgment of 13 July 1995, Series A no. 323).
21.  The Chief Justice delivered the majority judgment of the court on 30 July 1999. He began by describing the role of juries in the assessment of damages in defamation actions. It had been conceded by the first applicant that the trial judge had followed the practice in cases of this nature, namely:
“...that of confining his directions to a statement of general principles, eschewing any specific guidance on the appropriate level of general damages”.
As pointed out by the Master of the Rolls in the above-cited John v. M.G.N. case:
“Judges, as they were bound to do, confined themselves to broad directions of general principle, coupled with injunctions to the jury to be reasonable. But they gave no guidance on what might be thought reasonable or unreasonable, and it is not altogether surprising that juries lacked an instinctive sense of where to pitch their awards. They were in the position of sheep loosed on an unfenced common, with no shepherd.”
22.  This was explained by the fact that the assessment of damages in libel cases was “peculiarly the province of the jury” As stated by Chief Justice Finlay in the Barrett case (cited above) the assessment by a jury of damages for defamation had a “very unusual and emphatic sanctity” so that the appellate courts had been extremely slow to interfere with such assessments. As emphasised in the above-cited John v. M.G.N. case, the ultimate decision, subject to appeal, was that of the jury which was not bound by the submissions made to it.
23.  The Chief Justice outlined the relevant domestic law. He considered that there was no conflict between the common-law and the Constitutional provisions, on the one hand, and Article 10 of the Convention, on the other. Article 10, as noted in the Tolstoy Miloslavsky judgment, required that “an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered”. He continued:
“By virtue of the provisions of Article 40.6.1o of the Constitution, the defendant is entitled, subject to the restrictions therein contained, to exercise the right to express freely its convictions and opinions.
The exercise of such right is subject however to the provisions of the Constitution as a whole and in particular the provisions of Article 40.3.1o and 40.3.2o which require the State by its laws to protect as best it may from unjust attack, and in the case of injustice done to vindicate the good name of every citizen.
Neither the common law nor the Constitution nor the Convention give to any person the right to defame another person.
The law must consequently reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name (Hynes-O’Sullivan. v. O’Driscoll [1988] I.R. 436). This introduces the concept of proportionality which is recognised in our constitutional jurisprudence.”
He cited, as the law applicable in the State, the judgment of Mr Justice Henchy in the above-cited Barrett case (see also paragraphs 44-46 below) and considered that a passage therein (the duty of the trial judge to direct the jury to confine damages to a sum as would “fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution in his standing among right-thinking people”) emphasised the following elements of Irish law:
“(a)  ... it is the duty of the judge to direct the jury that the damages must be confined to such sum of money as will fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution of his standing among right-thinking people as a result of the words complained of;
(b)  ... it is a fundamental principle of the law of compensatory damages that the award must always be reasonable and fair and bear a due correspondence with the injury suffered; and
(c)  ... if the award is disproportionately high, it will be set aside and not allowed stand.”
24.  The obligations arising from the provisions of the Constitution and the Convention were met by the laws of Ireland, which “provides that the award must always be reasonable and fair and bear a due correspondence with the injury suffered and by the requirement that if the award is disproportionately high, it will be set aside.”
25.  Accordingly, and as regards directions to be given to juries, neither the Constitution nor the Convention required a change as suggested by the first applicant. The added guidelines recommended by the Court of Appeal in the case of John v. M.G.N. were not based on the Convention but were a development of English common law. Indeed, he regarded the changes brought about by the case of John v. M.G.N. as not “modest” but “fundamental” in that they “radically altered” the general practice with regard to the instructions to be given to a jury as to the manner in which they should approach the assessment of damages in a defamation action. If the approach adopted in the Rantzen case and developed in the John v. M.G.N. case was to be adopted in Ireland, the jury would be buried in figures from the parties representatives and from the judge in respect of both libel and personal injuries’ damages previously awarded, while at the same time being told that they were not bound by such figures. He was satisfied that the giving of such figures, even in guideline form, would constitute an unjustifiable invasion of the domain of the jury. Awards in personal injury cases were not comparable with libel awards and thus he preferred the view on this particular matter expressed in the Rantzen case as opposed to the John v. M.G.N case. Informing juries of libel awards approved by the Court of Appeal would not have been recommended in the John v. M.G.N. case but for the Courts and Legal Services Act 1990 (a law which concerned the power of the Court of Appeal) in the United Kingdom.
26.  On the contrary, the jury must base its assessment entirely on the facts of the case as established by it (Mr Justice Henchy in the Barrett case) and a departure from that principle would lead to utter confusion. Each defamation action had its own unique features and a jury assessing damages had to have regard to each feature. Those features, which could vary from case to case, included the nature of the libel, the standing of the plaintiff, the extent of publication, the conduct of the defendant at all stages and any other relevant matters. Figures awarded in other cases based on different facts were not matters which the jury should be entitled to take into account. The Chief Justice was not therefore prepared to change the traditional guidelines given to juries in the assessment of damages in libel cases.
27.  He clarified that this did not mean that the discretion of the jury in libel cases was limitless:
“... the damages awarded by a jury must be fair and reasonable having regard to all the relevant circumstances and must not be disproportionate to the injury suffered by the injured party and the necessity to vindicate such party in the eyes of the public. Awards made by a jury are subject to a right of appeal and on the hearing of such appeal, the awards made by a jury are scrutinised to ensure that the award complies with these principles.”
28.  The Chief Justice then turned specifically to appellate reviews of such jury awards. He began quoting with approval Chief Justice Finlay in the Barrett case: while the jury assessment was not sacrosanct in the sense that it could never be disturbed on appeal, it had a very “unusual and emphatic sanctity” in that the jurisprudence had clearly established that the appellate courts had been “extremely slow” to interfere with such assessments. He also quoted with approval from the Court of Appeal judgment in the John v. M.G.N. case (at p. 55): “real weight must be given to the possibility that [the jury’s] judgment is to be preferred to that of a judge”.
29.  He summarised the impact of these extracts as follows:
“Both judgments recognise that the assessment of damages is a matter for the jury and that an appellate court must recognise and give real weight to the possibility that their judgment is to be preferred to that of a judge.
Consequently, an appellate court should only set aside such an award made by a jury in a defamation action if the award is one which no reasonable jury would have made in the circumstances of the case and is so unreasonable as to be disproportionate to the injury sustained.”
30.  He rejected the argument that larger awards should be subjected to a more searching scrutiny than had been customary in the past. He did not agree that the Rantzen test proposed by the first applicant (“could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re-establish his reputation”) was the test to be applied, noting that that test “differs substantially from the test which has hitherto applied”. If the Rantzen test were to be applied it would remove the “very unusual and emphatic sanctity” from jury awards and would take away the giving of “real weight” to the possibility that the jurors’ judgment is to be preferred to that of the judge. He concluded:
“Consequently, while awards made by a jury must, on appeal be subject to scrutiny by the appellate court, that Court is only entitled to set aside an award if it is satisfied that in all the circumstances, the award is so disproportionate to the injury suffered and wrong done that no reasonable jury would have made such an award.”
31.  Applying that test, the Chief Justice considered whether the damages awarded were excessive and disproportionate to any damage done to Mr de Rossa. He recalled that the factors to be taken into account were well established and he quoted with approval those outlined in the John v. M.G.N. judgment (pp. 47-48).
32.  As to the gravity of the libel, he noted that the libel clearly affected Mr de Rossa’s personal integrity and professional reputation. It was hard to imagine a more serious libel given the nature of the allegations, the profession of Mr De Rossa and the ongoing negotiations concerning his participation in Government.
33.  As to the effect on him, the Chief Justice referred to his evidence before the High Court as to the hurt and humiliation caused to him and his determination to vindicate his personal and professional reputation. This evidence was obviously accepted by the jury and it was easy to imagine the hurt and distress allegations of this nature would cause.
34.  The extent of the publication was wide: it was conceded by the parties that the “Sunday Independent” had a wide circulation throughout the State and was read each Sunday by over one million persons.
35.  The Chief Justice then considered the conduct of the first applicant up to the date of the verdict, including whether or not an apology, retraction or withdrawal had been published. The lack of an apology was regarded as being of considerable importance, a matter highlighted by Mr de Rossa’s evidence during the second and third trials. The passages cited by the Chief Justice demonstrated clearly, in his view, that all Mr de Rossa required was a withdrawal of the allegations in the absence of which he was obliged to endure three trials to secure vindication of his reputation during which he was subjected to “immensely prolonged and hostile cross-examination” by Counsel for the first applicant and his motives for bringing the action were challenged as were Mr de Rossa’s bona fides and credibility.
36.  The Chief Justice concluded:
“The Respondent is entitled to recover, as general compensatory damages such sum as will compensate him for the wrong which he has suffered and that sum must compensate him for the damage to his reputation, vindicate his good name and take account of the distress, hurt and humiliation which the defamatory publication has caused. Such sum should, however, be fair and reasonable and not disproportionate to the wrong suffered by the Respondent.
The jury found that the words complained of by the Respondent meant that the Respondent was involved in or tolerated serious crime and personally supported anti-Semitism and violent Communist oppression.
If these allegations were true, the Respondent was guilty of conduct, which was not only likely to bring him into disrepute with right-minded people but was such as to render him unsuitable for public office.
No more serious allegations could be made against a politician such as the Respondent herein.
Having regard to the serious nature of the said libel, its potential effect on the career of the Respondent, and the other considerations as outlined herein, it would appear to me that the jury would have been justified in going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation.”
The jury assessed damages in the sum of £300,000. This is a substantial sum but the libel was serious and grave involving an imputation that the Respondent was involved in or tolerated serious crime and that he personally supported anti-Semitism and violent Communist oppression.
Bearing in mind that a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered and not be disproportionate thereto, I am not satisfied that the award made by the jury in this case went beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded and is not disproportionate to the injury suffered by the Respondent.”
37.  The award approved by the Supreme Court, IR£300,000, was three times more than the highest libel award previously approved by that court. The award and Mr de Rossa’s legal costs were discharged by the second applicant as were the first applicant’s own legal costs.
38.  As to the guidelines to be give to jurors and having reviewed relevant judgments from certain common-law jurisdictions and in the above-cited Tolstoy Miloslavsky case, Mrs Justice Denham was in favour of giving further guidelines to jurors including in respect of prior libel awards made or affirmed by the Supreme Court, prior awards in personal injuries’ cases, the purchasing power of an award and the income it might produce together with the level of award deemed appropriate. There was nothing in principle to prevent comparative figures being so provided: it would not diminish the place of the jury if it was informed of issues relevant to the proportionality of the damages. Indeed, as in the John v. M.G.N. judgment, she considered that such information would enhance the role of the jury since it would be assisted by comparative and other relevant information.
39.  As to the required test to be applied by the appellate court, she recalled and quoted with approval the judgments of Chief Justice Finlay and of Mr Justice Henchy in the Barrett case. She saw no reason why, if the Chief Justice in that case was making a comparative assessment of awards, this information should not be available to the jury. She agreed that the appellate court should strive to determine the reasonableness and proportionality of awards as outlined in the Barrett case, but the effectiveness of that appellate review depended on the prior availability to the jury at first instance of adequate guidelines on damage levels. Such an approach, she believed, would enable the system to be more consistent and comparative and would allow it to appear more rational.
40.  As to whether the award in the present case was excessive, she noted that there were strong similarities between the present case and the case of McDonagh v. News Group Newspaper Limited (Chief Justice Finlay, Supreme Court judgment of 23 November 1993, unreported): both plaintiffs had a standing in the community and the relevant publications were seriously defamatory. However, the award in the McDonagh case was considered to be at the top of the permissible range. Even allowing for the additional aggravating matters in the present case, it was clear that the award was “beyond that range in the sense that it is so incorrect in principle that it should be set aside”. She considered that the award to Mr de Rossa should be reduced to IR£150,000 and concluded:
“In principle it is open to the Court to provide guidelines on the charge to be given by a judge to a jury in libel cases. Guidelines on levels of damages given by a judge would aid the administration of justice. Guidelines would give relevant information and aid comparability and consistency in decision-making. Such guidelines would relate only to the level of damages - not the kernel issue as to whether or not there had been defamation. Thus, such guidelines would not impinge of the area traditionally viewed in common law jurisdictions as a matter quintessentially for the jury. More specific guidelines on the level of damages would help juries and the administration of justice by bringing about more consistent and comparable awards of damages and awards which would be seen as such. Specific guidelines would also inform an appellate court in its determination as to whether an award is reasonable and proportionate. The award in this case was excessive and on the principles of reasonableness and proportionality I would reduce it to £150,000.”